Jump to Navigation
Jump to Content

United States v. Rohm & Haas Co.

ELR Citation: 18 ELR 20221
Nos. No. 85-4386, 669 F. Supp. 672/26 ERC 1380/(D.N.J., 08/19/1987)

The court holds that potentially responsible parties (PRPs) in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action are not constitutionally entitled to de novo review of the Environmental Protection Agency's (EPA's) choice of a remedial response, although they are entitled to an informal hearing and an opportunity to comment. The court first holds that SARA applies to cases pending at the time of its enactment. Although the amendments state that they shall take effect "on the enactment of this Act," other sections clearly indicate that Congress intended for SARA to apply to ongoing cases. The court then holds that PRPs are not entitled to a de novo review of EPA's choice of remedy in a full, trial-type hearing. Although defendants were not provided with a full adjudicatory hearing before the agency, due process does not require a full hearing on the issue of the propriety of the response action. SARA itself contemplates an informal hearing, and this has been implicitly endorsed by at least one court. Defendants' private economic interests are clearly important, but the countervailing public interest in effecting expeditious cleanup of hazardous waste sites is overwhelming. Where the parties have been allowed to comment on the agency's proposals and to submit comments and reports from their own experts, the presentation of live testimony or the opportunity for cross-examination would not add much to the decisionmaking process. The court holds that the process afforded the PRPs in this case did not meet the minimal standards set out in SARA §113(k)(2)(B). At least several of the defendants did not receive notice of the selected remedy. Moreover, EPA's five-day comment period did not provide a reasonable opportunity for the submission of comments, and the administrative record appears to be incomplete. The court declines to employ either an arbitrary and capricious standard or de novo review to the identified deficiencies in the administrative process, holding that remand to EPA for further development of the record is appropriate. The court notes, however, that when the record is complete, it will limit its review to the arbitrary and capricious standard.

Counsel for Plaintiff
James C. Woods, Special Ass't U.S. Attorney
Federal Bldg., 970 Broad St., Room 502, Newark NJ 07102
(201) 645-2155

Counsel for Defendant
Bradford F. Whitman, Wendy Relation
Dechert, Price & Rhoads
3400 Center Sq. W., 1500 Market St., Philadelphia PA 19102
(215) 972-3400

Counsel for Plaintiff-Intervenor
Ronald P. Heksch, Deputy Attorney General
Dep't of Law & Public Safety
8th Fl., Justice Complex, CN080, Trenton NJ 08625
(609) 292-8740